Svernlöv, Carl

Stockholm University, Faculty of Law, Department of Law.

2007 (Swedish)Doctoral thesis, monograph (Other academic)

Abstract [en]

This dissertation examines discharge from liability in the Swedish limited liability company. Under Ch. 7 § 11 of the Swedish Companies Act 2005, the shareholders shall at the annual general meeting resolve on whether to grant discharge from liability to the board members and managing director. According to Ch. 29 § 7 ABL, an action for damages against board members or the managing director may be brought if, at the general meeting of shareholders, the majority or a minority representing not less than one tenth of all shares have voted for a resolution to bring such action or, with respect to a board member or the managing director, has voted against a proposal to grant discharge from liability.

The principal effect of a decision to grant discharge from liability is therefore (with some exceptions, see below) to bar any action by the company against the board members and the managing director in relation to the period that the decision covers, i.e., the financial year covered by the annual accounts presented at the shareholders’ meeting where the discharge resolution is passed.

A failure to grant discharge from liability has no immediate effect on the liability of the board members and the managing director. It merely leaves the possibility open for the company (through the board or by way of a derivative lawsuit by a minority shareholder) to initiate an action for liability within a year after the annual accounts were presented. Consequently, a resolution not to grant discharge from liability does not necessarily mean that an action will be brought against the person subject to such resolution, and sometimes a refusal to grant discharge is merely used to express the shareholders’ disapproval with one or more functionaries of the company.

Furthermore, granted discharge from liability is subject to a number of exceptions. The most notable of these exceptions is the one in Ch. 29 § 11 of the Companies Act which applies where, in the annual report or the auditor's report or otherwise, materially correct and complete information was not provided to the general meeting regarding the resolution or the action on which the liability proceedings are based. Exceptions also apply to criminal actions of the board members and the managing director and under certain circumstances to actions brought after the company has entered into bankruptcy.

The discharge resolution under the Companies Act is fairly unique in an international perspective, and is governed by a few, briefly worded provisions in the Act. Moreover, there are few precedent cases on the topic, which means that a great number of issues and questions remain unclear in the Act. This dissertation is intended to shed some light on a number of these ambiguities.